It shouldn’t come as any surprise to you that, before December 2014, the United States tortured its detainees. However, when the US Senate Select Committee on Intelligence released a 525-page excerpt of its findings on the US detainee program last week, there was still a genuine sense of shock about the extent of that torture.

There were some pretty damning details in the 525-page excerpt report, many of which were horrific and somewhat draconian methods used by the CIA in interrogating detainees. Among the most horrific details are:

The use of “rectal rehydration”, where detainees are forcibly rehydrated by inserting food into their rectum;

Detaining individuals with mental handicaps as a way of interrogating other detainees;

Forcing detainees who have broken arms and legs to stand in “stress positions”;

Threatening to harm, kill or sexually assault family members of detainees; and

Denying medical attention to badly wounded detainees.

The full report, which is approximately 6,000 pages long and is said to have cost more than $40 million to compile over 5 years, provides details about the US detainee program over the span of 2001-2006. Among the more embarrassing findings is that the CIA admits that it obtained little to no intelligence that was useful in conducting these interrogations. Furthermore, it seems that the CIA and former president George W. Bush had an agreement to be willfully blind to one another regarding the extent of these interrogations – which, if true, may be yet another failure to add on George W. Bush’s troubled presidency.

In light of the recent allegations against the CIA, one wonders if the ICC can capitalize on this public wave of anger and attempt to bring the United States under its investigative mandate. This would go a long way to dispel any allegations that the ICC is an ineffective experiment in international law, and could provide for a new avenue of accountability and rule of law in the international sphere.

However, there’s a major hurdle to overcome – the United States has never ratified the Rome Statute (which is required in order for the ICC to have jurisdiction over that country) and has already indicated that they do not intend to become state parties to the Rome Statute, thereby releasing them of their obligation not to subvert the treaty. What this ultimately means is that even though it is likely that the CIA committed acts in contravention of several international human rights standards, the ICC has no jurisdiction to prosecute responsible officials.

Despite this, I think there is some room for the ICC to speak up and provide input on this conversation. The ICC may not have much legal grounding to prosecute US officials, but there are some justifications as to why the ICC should make it known that it intends to prosecute US officials:

Restoring public trust in the ICC by emphasizing its non-partisan stance;

Emphasizing the rule of law;

Bringing discussion of human rights for detainees to the forefront, and

Catalyzing a change in the US stance on the ratification of the Rome Statute.

It might seem a bit odd to think that a threat to prosecute US officials would catalyze a change in long-standing US policy, but the ICC may not have much to lose by utilizing this wave of public anger. Even if the ICC is not successful in bringing the US under its mandate, it would still be able to argue that it is advancing its cause with a valiant effort by working to bring the United States – undoubtedly the world’s largest military force – under its mandate.

Personally, I am a supporter of the International Criminal Court, as it carries the banner of human rights and law and order in the international sphere. However, if the ICC does not work to expand its jurisdiction to one of the most important non-signatory states, it will always have to justify its existence to the world.

___________________

Sherif Rizk is a blogger and articling student based in Ottawa. Follow him on twitter @LegalRizk

Comments

I’m not sure publicly announcing that you intend to act outside of your jurisdiction supports the rule of law.

As well, given the inevitable refusal to co-operate by the US, and most of the rest of the world when it comes to US citizens,this is unlikely to improve the ICC’s clout, so much as drawing attention to its limited relevance.

A better approach for the ICC might be to utilize this as an opportunity to put political pressure on the USA, but without overstepping their legal or practical authority, such as issuing a statement along the lines of if only the USA was a signatory we’d want to investigate this carefully and we would be able to provide assistance in resolving and preventing this from continuing or happening in the future, which can be difficult for any country internally due to political considerations.